Nuclear Information Resource Service v. Nuclear Regulatory Com'n
| Citation | 969 F.2d 1169 |
| Decision Date | 17 July 1992 |
| Docket Number | No. 89-1381,89-1381 |
| Parties | Nuclear Reg. Rep. P 20,556, 297 U.S.App.D.C. 169, 22 Envtl. L. Rep. 21,252 NUCLEAR INFORMATION RESOURCE SERVICE, et al., Petitioners, v. NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Nuclear Management and Resources Council, Inc., Intervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Eric R. Glitzenstein, with whom Katherine A. Meyer was on the brief, for petitioners. William B. Schultz, Alan B. Morrison, Dean R. Tousley, Diane Curran, and James M. Shannon also entered appearances for petitioners.
John F. Cordes, Jr., Solicitor, Nuclear Regulatory Com'n, with whom Barry M. Hartman, Acting Asst. Atty. Gen., Ellen J. Durkee, Atty., Dept. of Justice, William C. Parler, Gen. Counsel, E. Leo Slaggie, Deputy Sol., and Carole F. Kagan, Senior Atty., Nuclear Regulatory Com'n, were on the brief, for respondents. Richard B. Stewart, Asst. Atty. Gen., John A. Bryson, Atty., Dept. of Justice, Martin G. Malsch, and Steven F. Crockett also entered appearances for respondents.
Marcus A. Rowden, with whom P. David Richardson, Barton Z. Cowan, Joseph M. Ramirez, and Robert W. Bishop were on the brief, for intervenor. Arthur Lazarus, Jr., also entered an appearance for intervenor.
Dorothy Thompson and Robert Guild entered appearances for amici curiae.
Before MIKVA, Chief Judge; WALD, EDWARDS, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, HENDERSON, and RANDOLPH, Circuit Judges. *
Opinion for the Court filed by Circuit Judge SENTELLE.
Dissenting opinion on the denial of a pre-operational hearing on new safety information filed by Circuit Judge WALD, with whom Chief Judge MIKVA and Circuit Judge HARRY T. EDWARDS join.
We today review en banc a Nuclear Regulatory Commission ("NRC" or "Commission") rule aimed at substantially revamping the licensing process for nuclear power plants. 10 C.F.R. Part 52. This matter was previously heard by a panel of this Court in Nuclear Information and Resource Service v. United States NRC, 918 F.2d 189 (D.C.Cir.1990) ("NIRS ").
The panel concluded that the Commission's decision in Part 52 to authorize issuance of a single, "combined license" in lieu of separate construction and operating permits was acceptable under the Atomic Energy Act ("Act" or "AEA"). It likewise upheld the Commission's reliance on a pre-approval process for assessing reactor designs and sites. The panel did, however, declare facially invalid Part 52's regulations regarding the Commission's duties in making findings and holding hearings after construction is completed and before operation begins.
After rehearing, we continue to affirm the Commission's combined license procedures and its reliance on the pre-approval process; however, we now also hold that the post-construction procedures embodied in Part 52 are based on a permissible reading of the AEA. 1
Before conducting the rulemaking now before us, the NRC licensed nuclear reactors in two regulatory steps. See 10 C.F.R. Part 50. At the first step, the Commission was required to find the proposed site and preliminary design plans acceptable, and conduct a public hearing on these matters; thereafter, the Commission issued a construction permit. Upon completion of construction, the licensee then sought an operating license, which could be granted only after the Commission approved the reactor's final design, made several other findings, and conducted another public hearing.
Because Part 50 allowed the NRC to issue a construction permit on incomplete design information, it often became necessary for the Commission to impose new regulatory requirements as construction continued and plans changed. A "design-as-you-go" approach on the part of licensees was mirrored by a "regulate-as-you-go" tack on the part of the Commission. The result of this regimen was, as the [e]ssentially every reactor ... has been custom-designed and custom-built. The fact that almost every reactor is "one of a kind" has led to excessive difficulty in verifying the safety of individual plants and identifying particular problems in transferring the safety lessons from one reactor to another.
Office of Technology Assessment has stated, that
After a number of unsuccessful attempts to persuade Congress to restructure the licensing process through new legislation, in 1987 the Commission moved to reform reactor licensing regulations under existing legislation. It did so with two announced objectives: to standardize nuclear power plant design, and to establish a procedural framework for resolving with some finality as many safety and environmental issues as possible before--rather than after--construction begins. See 52 Fed.Reg. 34,884 (1987). In 1989, the Commission announced its final product, known collectively as Part 52. 54 Fed.Reg. 15,372 (1989) (codified at 10 C.F.R. Part 52).
Pre-Approval of Designs and Sites. One major feature of Part 52 is the NRC's new regulatory scheme for pre-approval of standardized power plant designs by rulemaking. 10 C.F.R. Part 52, Subpart B. Under Subpart B, an applicant files with the Commission a proposed design; if, after a period of notice and comment and a possible hearing, the Commission concludes that the design is safe, it issues a design certification. 10 C.F.R. §§ 52.41-.63. This certification remains effective for 15 years, and is renewable in successive rulemakings. 10 C.F.R. §§ 52.57-.61. Thus, the procedure allows applicants to register a "generic" design with the Commission that may be utilized any number of times during the life of the certification.
Related to the pre-approval process for plant designs is one for the early determination of plant sites. 10 C.F.R. Part 52, Subpart A. Under the "early site permit" process, the Commission may, after conducting a hearing and making necessary findings, approve a site permit. 10 C.F.R. §§ 52.11-.39. While a site permit does not authorize construction, it does establish design criteria for plant construction on the proposed site. Moreover, it retains validity for up to 20 years, though the NRC may extend this period after another examination. 10 C.F.R. §§ 52.29-.33.
Combined Licenses. Part 52 also establishes a process by which an applicant may obtain a "combined license." 10 C.F.R. Part 52, Subpart C. A combined license constitutes not only a construction permit, but also a conditional operating permit. Issued before construction, it forms the centerpiece of the Commission's effort to resolve as many issues as possible as early in the licensing process as possible. See 54 Fed.Reg. at 15,373-74 (1989).
The Commission requires an applicant for a combined license under Part 52 to provide a much higher level of detail concerning the final design of the facility than was needed for a construction permit under Part 50. Before issuing the new combined license, the Commission must find that the proposed final design complies with the Act and NRC regulations; it must also hold a hearing on all related issues. 10 C.F.R. §§ 52.79, 52.85, 52.97. If, however, a combined license application references a pre-approved design, issues regarding design will be deemed resolved; the Commission will conduct no new findings regarding the design and the required hearing will not encompass issues heard at the design certification stage. Id.
Even if referencing a pre-approved design, the applicant must still show at this stage that the certified design can be successfully linked to site-specific design elements. Id. The Commission is obliged to hold hearings and make findings on this linkage. Id. If, however, the combined license application references not only a pre-approved design, but also a pre-approved site, the applicant need only demonstrate at this stage that the design falls within the parameters specified in the early site permit. Consequently, the Commission's In addition to the foregoing, the Commission must also set forth the "acceptance criteria" for the proposed plant at this juncture. 10 C.F.R. § 52.97(b). Acceptance criteria are the tests, inspections, and analyses the Commission will conduct after construction is completed to ensure that the facility has been built and will operate in conformance with the license and the Act. Id. The content of the acceptance criteria is subject to litigation in the combined license hearing. If any changes are required after the combined license is issued, the Commission must hold more hearings and make further findings before issuing a license amendment; all license amendments must be approved before operation may commence. Id.
duty to hold hearings and conduct findings will be limited to this issue. Id
Post-Construction Procedures. After construction is complete, the Commission--having approved the design and site, and having approved the match between the design and site--treats every licensing issue as finally resolved, save whether the plant as actually built meets the specifications established by the acceptance criteria. Consequently, under § 52.103(b)(1)(i) the Commission will entertain only petitions showing "prima facie, that one or more of the acceptance criteria in the combined license have not been met and, as a result, there is good cause to modify or prohibit operation." If a prima facie case is made out, and certain other requirements met, a formal hearing on conformance to the acceptance criteria will be held. See §§ 52.103(b)(1)(i) and (2)(i). At the end of this hearing, the Commission must, under § 52.103(c), find that "the acceptance criteria ... have been met and ... accordingly, the facility has been constructed and will operate in conformity with the Atomic Energy Act." (Emphasis...
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